Construction Lawsuits – Witnesses Are Overrated

Authored by attorney Ned Nicholas

In television law it’s all about the witnesses. This was true back in the day with Perry Mason and it’s true today on the many courtroom drama shows. And there is no denying some testimony (“he shot her” or “the light was red” come to mind) can make all the difference in a case.

But in construction lawsuits it’s generally not the witnesses that matter most – it’s the documents.

At the outset of a project, there is the matter of the contract. Oral contracts are sometimes enforceable, but what exactly are the terms of that contract? What is the scope of work? What is the price? It’s very handy to have at least the key terms set out in a signed document.

Sometimes it’s about the document that never existed. Virginia courts are fairly strict when it comes to provisions requiring written notice of, for example, the intent to terminate a contract. If the party asserting the claim didn’t bother to send an e-mail or letter giving the required notice, then it’s unlikely that even the most impressive witness will save the day.

Day-to-day project documents can make all of the difference in a variety of construction claims. For example, in delay cases, schedule updates and meeting minutes often tell a story than no witness can effectively rebut. Project photographs can be the key to advancing or defending a construction defect case. And timely and well-written e-mails are important in almost every case.

Why do project documents make such an impact? Because they are like a neutral witness. They are created before the lawsuit is filed and often before the dispute has even bubbled to the surface. Arbitrators, jurors and judges tend to believe that project documents, particularly those shared among the project participants, give an accurate portrayal of projects events. And this is generally true, because inaccurate statements usually generate a response with exceptions noted. So the lesson is-keep good records.

These articles are meant to bring awareness to these topics and are not intended to be used as legal advice.